What is a cartel? Can't tell

Few freedom of information cases make it to a full bench of the Federal Court and after Thursday's narrow decision on what is, or is not, in the public interest, it will be a long while before another case gets there.

This weeks's disillusioned applicant is Brent Fisse, an expert in trade practices and competition law, who teaches in this specialised area here and abroad, and advises Australian law reform agencies.

Fisse wants to grasp the complex issues involved in a plan announced by the Howard government and now picked up by Rudd to legislate for criminal sanctions for price fixing.

To define "serious cartel behaviour" and address other difficult issues, Howard's government set up a working party. Then treasurer Peter Costello sat on its report and released only a press release.

Fisse took the commonsense view that, to address the complex issues, he'd like to see the whole document. When the similar Enterprise Act was passed in Britain, the discussion papers were publicly available.

Fisse thought the FoI Act was there to make just such documents available. Treasury refused on the grounds the report was "advice to government" and that release was contrary to the public interest, then bulked up its arguments for refusing access by adding the cabinet exemption even though the document never went to cabinet.

Treasury's argument, accepted by three judges of the court, went like this. The document did not go to cabinet but it was used to inform the proposal Costello took to cabinet. Releasing the report would therefore disclose the content of material prepared to support a recommendation to cabinet and would therefore breach the principle of cabinet confidentiality. As well, an executive summary of the report was taken to cabinet so disclosing the full report would effectively disclose the contents of the summary.

Got that?

Parts of the Federal Court judgment are critical of the evidence accepted in earlier proceedings in the Administrative Appeals Tribunal that the report really is entitled to receive the cabinet exemption. But the judges found no error of law they needed to overturn the AAT decision.

Once they agreed the document was a cabinet document the second exemption, that it was "advice" to government, was inevitably upheld. The "advice" exemption only holds if release is not in the public interest and the court agreed it was not in the public interest to release a cabinet submission.

It might be good tight law but the decision to keep the report secret fails every common sense test. Four years after the report was done and we still don't have a proper discussion paper.

As well as losing, Fisse had costs awarded against him. They will be substantial, given both sides briefed silk.

No wonder he thinks the system a joke and has little faith Kevin Rudd will do much to change it.

"I think the legislation is worse than useless," he said. "It encourages people to think there is open government and that is completely false."

Posted
by Matthew MooreDecember 15, 2008 12:50 PM

LATEST COMMENTS

A cartel: is an association and an alliance put together for a common aims.

Under a political party is POWER to curtain any democratic rights for the people.

What I have witnessed with many of my friends is that during the last few year that most of the people have been brainwashed with the word " TOLERANCE ".

The dictionary defines TOLERANCE; discinclined to interfere with others'ways or opinions.

In plain english " PUT UP and SHUT UP".

When you read and hear statement like this from a high level person " WE AUSTRALIANS ARE VERY FORTUNATE BECAUSE WE LIVE IN A VERY TOLERANT AND OPEN-MINDED SOCIETY", democracy is dead and buried so the will people are irrelevant and autocracy by stealth will rule, that's why the law is an arse and freedom is just a mirage.

As long we believe in this king of fairy tales we will stay what we are the slave of our servants.